The Trustee For The Kakatiya Unit Trust (Migration)

The Administrative Appeals Tribunal considered an application by The Trustee For The Kakatiya Unit Trust (the applicant) concerning the approval of a nomination under the Direct Entry nomination stream. The dispute arose when the Department of Home Affairs refused to approve the nomination, and this decision was subsequently affirmed by the Tribunal. The core issue was whether the applicant met the requirements for nomination approval, specifically under regulation 5.19(4) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied all the criteria for the Direct Entry nomination stream, as stipulated in regulation 5.19(4). This included assessing whether the nominator was actively and lawfully operating a business in Australia and directly operating that business, as required by subregulations 5.19(4)(b)(i) and (ii). The Tribunal also considered the Department's policy regarding the assessment of active business operation, noting that while not bound by it, it could be applied if it did not lead to an unlawful or unjust decision.

The Tribunal reasoned that for a business operating for more than 12 months, appropriate financial documentation, such as a balance sheet and profit and loss statement for the most recent fiscal year, or business tax returns, should be provided to support claims of active operation. The applicant had provided various documents to both the Department and the Tribunal, including ABN lookup forms, financial statements, and tax returns. However, the Tribunal found that no response had been received to its invitation for further information, and it was not satisfied that the applicant was actively and lawfully operating a business in Australia at the time of the decision. Consequently, the Tribunal affirmed the decision under review to refuse the nomination.